Unfair dismissal; whether award applies to employment

One of the qualifying criteria for determining whether an employee may pursue a claim for unfair dismissal is, in the case of high income employees, the issue whether or not the employment is covered by the Professional Employees (Modern) Award 2010. In some respects the award is generic, even in a  sense aspirational, and its ambit is potentially quite broad. How should its area and scope be interpreted? Here is an extract from a decision of the Fair Work Commission which pursues that line if enquiry.

“CONSIDERATION

The Approach to determining award coverage

[64] As a Full Bench of the Commission observed in Gourabi v Westgate Medical Centre 11 :

“For relevant purposes, each modern award has a ‘coverage’ clause that determines ‘the employers, employees, organisations and outworker entities’ that are covered by it. The determination of whether a particular employment falls within the coverage clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.” 12

[65] In interpreting an award provision, the words of the clause are to be given their ordinary meaning. 13 Award history and subject matter may be considered to resolve any ambiguity.14 In considering whether a modern award covers a person, the test has been stated as: “to discern the objective meaning of the words bearing in mind the content in which they appear and the purpose they are intended to serve”.15 The approach to determining whether an employee is covered by an award is to assess the principal purpose or primary function for which the employee was employed.16……………………………

In Halasagi v George Weston Food Limited (Halasagi), Vice President Lawler said in relation to the meaning of “professional engineering duties” as it appears in the Professional Employees Award:

“[23] I proceed on the basis that:

  • Particular duties will not be “professional engineering duties” as defined unless it is almost invariably the case that a qualification of the sort referred to in the definition is needed for the adequate discharge of some portion of those duties.
  • The qualification must relate directly to the duties in question. That is, it is not enough that an employee holds a qualification as (or at least equal to those of) a graduate member of Engineers Australia, the qualification must be a qualification of the sort that is almost invariably needed to perform duties of the sort that are said to be the “professional engineering duties” of the employee. In other words, an employee would generally not be able to rely upon, say, a degree in mechanical engineering to claim coverage by the Professional Employees Award 2010 in a position that involves duties in the field of chemical engineering.
  • If the advertisement for an employee’s position identifies a relevant qualification as required this would be prima facie evidence that the position involved “professional engineering duties” for an employee who held that qualification.
  • The reference in the definition to “the adequate discharge of any portion of” the relevant duties is intended to ensure that engineers who advance in their career and assume an increasing load of administrative duties remain covered if they still perform some engineering duties, the adequate discharge of which requires the relevant qualification and the definition should be construed accordingly.

[24] Of course, an applicant who seeks to establish that they are protected from unfair dismissal by virtue of being covered by a modern award needs to establish not only they are within the coverage clause of that modern award (the issue with which I am presently concerned), but also that they are employed in a classification in the award. That later question is determined by reference to the “principal purpose” test.  I would note that, in relation to the Professional Employees Award 2010, care must be taken not to confuse these two questions because the definition of “professional engineering duties” can be satisfied by reference to “any portion” of the employee’s duties and does not require that the duties falling within that definition are the “principal purpose” for which the employee is employed.” (citations omitted) 18

[72] The approach in [23] was endorsed and adopted by a Full Bench of the Commission in Bateman v Communications Design & Management Pty Ltd 8. It is first necessary to consider whether Mr Bury was performing professional engineering duties as defined in clause 3.2 of the Professionals Award. In my view the proper construction of that definition is that the employee must hold the relevant qualifications or their equivalent. My view in this regard is based on the text of the definition which provides that the term “requires” relates to the qualification rather than the duties performed. Further, the discharge of the relevant duties is qualified by the term “adequate”. These aspects of the definition reflect the specialised nature of engineering work, the professional obligations placed on engineers which are sometimes reflected in legislation and the fact these aspects of the role are recognised by formal tertiary level qualifications.

[73] This construction is also supported by the reference to Engineers Australia in the definition of professional engineering duties. Engineers Australia is a body which accredits programs of study so that persons who have undertaken such programs are considered to have qualifications such as a graduate engineer. Engineers Australia also assesses the competencies of persons who have undertaken a program of study that is not accredited to determine whether that program is equivalent to an accredited program. Therefore, to carry out professional engineering duties as defined in the Professional Employees Award a person must hold a qualification which would entitle that person to membership of Engineers Australia as a graduate member or equivalent qualifications.

[74] This is not to say that the Professional Employees Award requires membership of Engineers Australia before a person can carry out professional engineering duties. Rather, what is required is that the person carrying out such duties is entitled to be a graduate member of Engineers Australia by virtue of holding a qualification or its equivalent. It is also necessary that adequate discharge of any portion of professional engineering duties requires the relevant qualification or its equivalent.

[75] In the present case, during his employment and that the point he was dismissed, Mr Bury did not hold a qualification which would entitle him to be a member of Engineers Australia or an equivalent qualification. When this matter was heard, Mr Bury was in the process of obtaining an assessment by Engineers Australia. The documentation tendered by Mr Bury after the hearing establishes no more than the ongoing endeavours being made by him to have his qualifications recognised.

[76] I am also of the view that the neither the work carried out by Mr Bury nor any portion of that work, required qualifications of a graduate member of Engineers Australia or equivalent, in order for the work to be adequately discharged. At the point he was dismissed, Mr Bury was employed in the role of Head of Operations. Mr Bury reported to the CEO. His position description makes clear that his role was establishing and managing systems to ensure objectives with respect to production, procurement, logistics, documentation management, quality and product assurance were met. Mr Bury was also charged with managing team members to ensure duties were performed in an efficient and timely manner consistent with the policies and procedures he was charged to establish and implement. The role did not require a degree, much less an engineering degree, and stated that ten years’ experience in a similar working environment or ideally within a similar industry would be accepted.

[77] The duties and responsibilities as set out in the position description for Operations Manager are managerial. The duties and responsibilities are focused on establishment and management of systems, processes, procedures, logistics and relationships both internal and external. I do not accept that the responsibility for development of a quality management or document control system requires an engineering degree or equivalent. Other examples of duties given by Mr Bury also do not require an engineering degree including the design of a launch facility or the layout of a factory or production processes to be carried out in the factory. It is also the case that the evidence established that the main role Mr Bury had in the establishment of the launch facility was to negotiate with the owners of the land on which it was to be situated and attend to the regulatory arrangements for the construction. Further, the technical inputs were the responsibility of the engineers responsible for the “product verticals” of the rocket. There were a significant number of such engineers responsible for these areas.

[78] I also do not accept that the SEMP developed by Mr Bury required an engineering degree or equivalent. It is clear that the SEMP is a framework document which establishes a repository for policies and procedures and a system for managing and integrating policies and procedures in a range of areas including engineering, into a comprehensive plan. The role of engineers in the Company is apparent from the organisational chart which makes clear that engineers reported to the Engineering Manager and not Mr Bury. In fact, Mr Bury had no engineers reporting to him further evidencing that he was not involved in carrying out professional engineering duties within the meaning in clause 3.2 of the Professional Employees Award.

[79] It is also the case that the duties in Mr Bury’s position description and as outlined in his evidence to the Commission are not duties that almost invariably need a qualification of the sort referred to in the definition of professional engineering duties. In any event, Mr Bury did not hold such a qualification during his employment or at the point this matter was before the Commission. I accept that Mr Bury’s experience in the Aeronautical and Space industry would have been essential to his ability to carry out the role of Operations Manager as described in the position description but this does not result in Mr Bury carrying out professional engineering duties as defined in clause 3.2 of the Professional Employees Award.

[80] Because Mr Bury was not carrying out professional engineering duties as defined in clause 3.2 of the Professionals Award, he also did not meet the definition in that clause of Professional Engineer. In addition to not meeting the requirements to be a person carrying out professional engineering duties, Mr Bury does not meet the definitions of either a Graduate engineer or an Experienced Engineer in clause 3.2 of the Award.

[81] For completeness and in the event that I am wrong in the construction of the definition of professional engineering duties I turn now to consider the second limb of the coverage provision in clause 4.1 of the Professional Employees Award – whether Mr Bury was covered by a classification in Schedule B and the definitions relating to that structure.

[82] Mr Bury asserts that he is covered by the Level 3 or Level 4 – Professional classifications in Schedule B of the Professional Employees Award. I am unable to accept that assertion. First, it is apparent that the classification definition in both of those Levels is linked to the definition of professional engineering duties in clause 3.2 of the Award. In short, the description of the duties is governed by that definition and the definitions of Graduate and Professional Engineer. The duties in Schedule B cannot be considered in isolation from those definitions.

[83] To illustrate the point, a person who is not covered by the Professional Employees Award because that person is not carrying out professional engineering duties as defined in clause 3.2, cannot assert coverage on the basis of having designed or developed equipment or products as specified in item B1.9(b) of Schedule B or undertaking the tasks in item B1.11 of that Schedule.

[84] If the principal purpose test is relevant to the Professional Employees Award, then it cannot be said that the principal purpose of Mr Bury’s employment was to carry out professional engineering duties as defined in clause 3.2 of the Award read in conjunction with Schedule B. In the context of the duties Mr Bury was employed to perform in the role of Operations Manager, the reference to the Professional Employees Award in his employment contract is not determinative of whether he was covered by that Award. I turn now to consider whether Mr Bury was covered by the Manufacturing Award. I do so on the basis that my conclusions in relation to this issue are provided on a provisional basis.”

Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space (2020) FWC 2015 delivered 17 April 2020 per Asbury DP